1. This appeal is directed against the grant of letters ofadministration, with a copy of the Will annexed, to the estate of one HaralalBanerjee who died on the 22nd August 1895. Haralal Banerjee was the eldest ofthree brothers, of whom the second was Kaliprasanna Banerjee and the youngestwas Sarat Chandra Banerjee. In 1890, a suit for partition had been brought bythe youngest brother, and when Haralal died, the brothers had apparently ceasedto be members of a joint family. Haralal left a widow, Nistarini (who isdescribed as his second wife), a daughter by her named Faring alias Sukumari,and four other daughters by his first wife Gangamoni, who had predeceased him,namely, Apsari, Puti alias Sarojini, Baraburi alias Pramila and Chotaburi aliasSarasibala. At the time when Haralal died, his wife Nistarini was in the familyway and was on the 15th November 1895 delivered of a posthumous son,subsequently named Susilkumar Banerjee. On the 19th February 1912, more thansixteen years after the death of Haralal, his three daughters by the first wife(other than Pramila who had died meanwhile) applied for letters ofadministration to his estate with copy annexed of a Will alleged to have beenexecuted by him on the day of his death. The application was opposed by theinfant son of Haralal through his mother, on the ground that the alleged Willwas not genuine and that his father had no testamentary capacity at the timewhen he is said to have executed the instrument. The District Judge haspronounced in favour of the Will, and has directed letters of administration toissue to the three surviving daughters by the first wife, each of whom is alegatee under the Will. On the present appeal, preferred by the infant throughhis mother, it has been argued that the genuineness of the Will has not beenestablished, and that the propounders have failed to discharge: the burdenwhich lay upon them to prove that the deceased had testamentary capacity at thetime of the alleged execution of the Will. Before we examine the evidence, itis desirable to set out briefly the provisions of the Will. The Will recitesthat the executant had been suddenly attacked with illness, that his body hadbecome very weak, and that he was in apprehension of death. The Will thenstates that the testator had no male issue, that he accordingly thought itadvisable to make some arrangement, and that to carry out his directions, heappointed his brothers Kaliprasanna and Sarat Chandra as the executors. Thenfollow two schedules : in the first, the debts and assets are stated; in thesecond, various legacies are specified. In the first schedule, in theenumeration of the assets, a sum of Rs. 5,525 is mentioned as money forpurchase of a house; this, it has been said, is an erroneous statement, as ahouse had been purchased precisely for that sum on the 12th November 1893 (Ex.B). In the second schedule, there is a legacy of Rs. 2,000 for the eldestdaughter Apsari, Rs. 1,500 for her daughter, Rs. 1,000 each for Puti, Baraburiand Chotaburi, Rs. 2,000 for the marriage of Faring (the daughter by the secondwife) and an additional sum of Rs. 1,000 for her. There is also a direction topay Rs. 100 to one Nani Gopal Mookerjee, possibly the sisters son of thetestator. There is finally a direction that the balance do belong to his wifeNistarini. The Will purports, on the face of it, to bear the signatures of twoattesting witnesses, Satya Charan Mookherjee and Chandra Kumar Banerjee, bothresidents of the locality where the testator resided, the former a medicalpractitioner, the latter a Government pensioner.

2. Before we determine whether the alleged testator was ofsound mind, within the meaning of sec. 46 of the Indian Succession Act, we mustconsider how far the case for the Petitioners is affected by the fact thatthere has been a delay of many years before the Will has been actually producedin Court. The District Judge has held that satisfactory explanation has beenoffered in this respect, and that the mere fact of delay does not tend to throwdoubt upon the genuineness of the Will. In concurrence with the District Judgewe hold that, after the death of Haralal, the Will was in the custody of theyoungest brother Sarat Chandra, and that after the death of the latter, theWill was found amongst his papers by his son Krishnahari, who, after somedelay, made it over to Apsari, the eldest daughter of the testator. Theevidence shows that Krishnahari found the Will among the papers of his father inApril 1911, but did not make it over to Apsari till November 1911; as heexplains, he took time to consider whether he should make over the Will whichhad been kept by his father in the iron-safe so long. It is needless toconsider whether this is an absolutely true explanation of his conduct; it isnot altogether improbable that he decided to deliver the Will to Apsari, onlyafter his mother had been sued by the infant son of Haralal for recovery ofmoney due on a promissory note executed by his father. It is only necessary toobserve that it is proved that Apsari did not obtain possession of the Willtill within three months of the date when she, along with her two sisters,applied for letters of administration. In these circumstances, we hold that thedelay in the production of the Will has been sufficiently explained.

3. Two points now require consideration, namely, first,whether what purport to be the signatures of the testator on the Will were madeby his hand, and, secondly, whether he had at the time sound mind within themeaning of sec. 46 of the Indian Succession Act. As regards the first question,we are inclined to adopt the view that the signatures are genuine. No goodreason has been assigned to discredit in this respect the testimony of the twowitnesses who have deposed that the testator signed the document. We arefortified in this opinion by a comparison of the signatures in the Will withthe admitted signatures of the testator. There is a striking resemblancebetween the two sets of signatures, but not that absolute identity which, inmany instances, may furnish indications of deliberate imitation by the carefulforger. The first signature, however, on the face of it, gives ample indicationthat it had been written by a man in a very feeble state of health. The secondsignature consists of initials and ends in a scrawl, as if the effort to makethe first signature had proved too much for the strength of the executant. Wenow proceed to consider the second question, namely, that of testamentarycapacity, on the assumption that the Will was signed by Haralal.

4. It appears from the evidence on both sides that Haralalhad been ill for about ten or twelve days before he died. It is also clear thathe had an attack of fever, but the medical witness for the Petitioners addsthat he had also dysentery. He was, during the first week of his illness, underthe treatment of a kabiraj. Three days before his death, Satya CharanMookherjee, an Allopathic Medical Practitioner, was called in. He treated him fortwo days. On the third day, he called in, for purposes of consultation, Dr.Rajendra Nath Mullick. This was on the day that Haralal died. The evidence onboth sides shows that Dr. Mullick came to see the patient in the afternoonbetween 5 and 6; according to Satya Charan, Dr. Mullick attended also in themorning. It further appears, from the evidence on the side of the objector,that on the same day, at about 2 P.M., Manimohan Mookerjee, father-in-law ofHaralal, called in another physician, Dr. Mahendra Nath Roy. Satya Charanadmits that he himself came to see the patient twice on that day, once in themorning and a second time in the afternoon. Haralal died early in the evening.The evidence indicates the time as between 7 and 8 oclock, possibly a littlelater. We have, therefore, the fact that the physicians attended on the dyingman five times in the course of the day, namely, Satya Charan twice, Dr.Mullick twice and Dr. Roy once. The Will is said to have been executed byHaralal in the afternoon between 5 and 6 P.M., i.e., about two hours before hisdeath. The frequent visits of the different physicians indicate plainly thatthe condition of the patient was grave and there are other circumstances whichunmistakably indicate that the illness had taken a serious turn at least two orthree days before his death. We have first the fact that the mode of treatmentwas changed, and Satya Charan, in whose charge the patient was placed, found itnecessary to call in a consulting physician on the third day after he had takenhim in hand. We have, in the second place, the fact that messengers were sentto bring in the daughters of Haralal. Nani Gopal, his nephew, went away toJessore on the night of the 20th August and returned with Apsari on the morningof the 22nd August, the day on which Haralal died. The other daughters arrivedlate in the same evening after Haralal had passed away. All these circumstancesincontestably show that the illness of Haralal had caused serious anxiety tohis relations at least three days before his death, and that, on the day of hisdeath, his condition was such as to necessitate the attendance of threephysicians on five occasions at his bed-side. The Court must, consequently,scrutinize with care and caution the evidence as to his testamentary capacityat the time when he is said to have executed the Will.

5. It is unfortunate that of the three medical attendants,who saw the patient on that date, Dr. Roy and Dr. Mullick are both dead, and weare left with the testimony of the sole survivor, of whom it is nodisparagement to say that he does not hold the diploma of any recognisedmedical institution. It is a matter for legitimate comment that no attempt wasmade on behalf of the Petitioners to obtain from the witness detailedinformation as to the nature of the illness and the condition of the patient.Satya Charan made the somewhat bald statement that Haralal died of fever anddysentery and was in full possession of his senses up till 5-30 or 6 P.M. SatyaCharan had been asked to produce his prescription-book; he did so and was atliberty to refresh his memory by reference thereto. It does not appear that hedid so; but it seems probable that a reference to the prescriptions might haveenabled him to give more definite information as to the condition of thepatient than he actually did. It also appears from the evidence on the side ofthe objector that Dr. Mullick injected some medicine into the body of thepatient when he saw him in the afternoon. No attempt was made to get out fromSatya Charan what happened when Dr. Mullick came in, though it is clear from theevidence that the two met and were with the patient for some time. We have, onthe other hand, the assertion of the witnesses for the objector that thetemperature of Haralal was very high and that he was delirious. Even if it beassumed that there is an element of exaggeration in the description given bythe witnesses for the objector, who are laymen, it cannot be seriously disputedthat the evidence adduced by the Petitioners is by no means convincing. Theburden was upon the propounders to show that the testator had testamentarycapacity, i.e., capacity to comprehend the nature and effect of his act; todischarge this burden, it must be shown that he was able to dispose of hisproperty with understanding and reason, that he was able to realise his position,to appreciate his property and to form a judgment with respect to the partieswhom he decided to benefit. The direct evidence, upon which the propoundersrely, is, from this point of view, not of much assistance; an assertion by awitness that the man was in full possession of his senses is of little value;it is merely an expression of his opinion, the value of which depends in alarge measure on the facts observed by him. As Williams, J., observed in Kinnev. Kinne 9 Conn. 102 (1831), the opinions of witnesses as to competency areentitled to little regard, unless supported by good reasons founded on factswhich warrant them. It is conceivable that, at this distance of time, thewitness might have found it extremely difficult to recollect the facts he hadthen observed; we are not unmindful that lapse of time may sometimes accountfor the meagreness of the evidence or for lacuna therein. But it is a matterfor legitimate comment that, in the present case, no attempt whatever was madeon behalf of the propounders to obtain the details from the witness; it is notas if the witness was asked to give the information and failed to recollectwhat he had noticed many years previously.

6. The difficulty in the way of the Petitioners is furtherenhanced by the fact that no particulars are given as to the time and mode ofpreparation of the Will. The two attesting witnesses merely state that theysigned the Will. Satya Charan does not state in examination-in-chief the nameof the person who had asked him to be an attesting witness, but incross-examination it has been brought out that the request came from thetestator. Chandra Kumar Banerjee cannot recollect who asked him to become awitness. Neither witness is able to give any information as to whether there wasa draft and whether instructions had been given as to the contents of the Will,and, if so, by whom. In these circumstances, the evidence of the writer wouldhave been a valuable aid in determining the question of validity of the Will.Satya Charan cannot say who the writer was Chandra Kumar Banerjee has nopersonal knowledge of the subject, but adds that he had heard that one AnnadaPrasad Sarkar was the scribe. Krishnahari then comes forward with the storythat they had two officers--Bishnupada Banerjee and Annada Prasad Sarkar--bothof whom had left their services some years previously. He then states that theWill was in the handwriting of Annada Prasad Sarkar, and adds that Annada wasin some village, not known, within Katwa in the District of Burdwan. This issaid obviously with a view to explain why Annada had not been called. The nextwitness, Nibaran Chandra Mookerjee, however, asserts that Annada had arice-shop in Kidderpore where the parties resided, and, though asked, had notagreed to give evidence. In cross-examination, it transpires that nocorroboration could be obtained of the allegation that Annada had refused togive evidence, because none else besides the witness was present when Annada issaid to have made the statement. We have consequently the fact that the writerhas not been called; it is not proved beyond doubt that a serious effort wasmade to obtain his evidence; in any event, if the Petitioners had good reasonto suppose that he could not be trusted to tell the truth, they might haveasked the Court to summon him, with liberty to both parties to cross-examinehim, if necessary. We have thus no information as to the instructions, if any,given by the testator for the preparation of the Will, except the barestatement by Satya Charan that he spoke about the Will for two or four dayspreviously. Even this does not give any indication that the testator hadexpressed his intention to make a Will, or as to the details of its terms, orthat he had consulted anybody about making a Will. We do not know when, if atall, instructions were given. We do not know that the provisions in the Will,as it stands, represent the wishes of the testator. In addition to this, wehave the fact that there is no reliable evidence to show that the Will as drawnup was, before execution, read over to the testator, and its terms approved byhim. Satya Charan, in his cross-examination, alleges that some one read out theWill, who he could not remember; he does not say, however, at what stage theWill was so read over. The person who read over the Will, if the story be true,should undoubtedly have been examined. We have consequently a Will executed bya man about two hours before his death, when his condition was critical, andwhen, according to the evidence, he was restless with pain, without anyinformation either as to the instructions, if any, given by him, or the timewhen and the person to whom the directions were given, and without any evidenceto show that the Will as prepared was, before execution, read over to andapproved by him. The Court called upon to pronounce in favour of such a Will,would, on well recognised principles, to which a brief reference will,presently be made, refuse to hold in favour of the propounder.

7. But in the present case we have the additional fact thatthe contents of the Will tend materially to confirm the conclusion against theoperative character of the instrument. As we have already stated, the Willcontains a serious misstatement, inasmuch as it includes amongst the assets asum of money for the purchase of a house which, as a matter of fact, had beenpurchased by the testator twenty months earlier; the recitals in theconveyance, together with the details of the currency notes paid to the vendor,show that the transaction had been completed. But, in addition to thismisstatement in the Will, we have what cannot but be regarded as a seriousomission from the Will. As we have already mentioned, the wife of the testatorwas in the family way and a posthumous son was born within three months of hisdeath. It may safely be assumed that testator was aware of the condition of hiswife; yet the Will makes no provision whatsoever for the possible child, thoughlegacies are given to everyone of the daughters and even to the granddaughter.The Will recites that, up to that time, the testator had no made issue; yet itmakes no reference to the possible child and makes a disposition of theproperties which would completely disinherit the son, if one was born. It isdifficult to believe that if the Will, as drawn up, was really the act of thetestator and represented his wishes and judgment, no reference should be madeto the possible child and no provision made for it, whether a daughter or son.On the other hand, if the terms of the Will were practically, settled by thebrothers or other well-meaning relations of the testator, when enfeebled bymortal illness and almost within sight of the end, they might have arranged forprovisions like those we find in the Will, in ignorance of the condition of thetestators wife. It is further clear, that if the available cash alone wastaken into account, very nearly the whole of it was given away in legacies, andpractically, nothing but the houses was left for the widow. The provisions ofthe Will are consequently such as are calculated to excite suspicion. No doubt,as pointed out by the Judicial Committee in Bulli Kunwar v. Bhagirathi 9 C. W.N. 649 (1905)., a Court will not reject a, Will merely because its terms appearextraordinary, against clear evidence of due execution by a competent testator.But where the terms are unusual, and the evidence of testamentary capacitydoubtful, as the Judicial Committee observed in Dufaur v. Croft 8 Moo. P. C.136. (1840) and Harwood v. Baker 8 Moo. P. C. 282 (1840), the vigilance of theCourt will be roused, and, before pronouncing for the Will, the Court willrequire to be satisfied beyond all reasonable doubt that the testator was fullycognizant of its Contents and in a condition to exercise, and did exercise,thought, judgment, and reflection respecting the act he was doing : Tyrrell v.Painton [1894] Prob. 151. Upon a careful scrutiny of the entire evidence, weare of opinion that the propounders have failed to establish that the testatorhad sound and disposing mind when he is said to have affixed his signature towhat purports to be his Will.

8. The principle applicable to cases of this character isnow settled beyond possibility of dispute. Mere ability to sign ones name doesnot necessarily imply the possession of the full mental powers requisite for avalid disposition of property. Nor is it sufficient to show that the testatorwas conscious when he executed the instrument. As Oreswell, J., said in Seftonv. Hopwood 1 F. and F. 579 (1855)., " it is not sufficient in order tomake a Will that a man should be able to maintain an ordinary conversation andto answer familiar and easy questions. He must have more mind than suffices forthat. He must have what the old lawyers called a disposing mind; he must beable to dispose of his property with understanding and reason. This does notmean that he should make what other people may think a sensible Will or areasonable Will or a kind Will. But he must be able to understand his position,he must be able to appreciate his property, to form a judgment with respect tothe parties whom he chose to benefit by it after death; and; if he has capacityfor that, it suffices. Sir John Nicholl observed in Marsh v. Tyrrell 2 Hagg.Ecc. Rep. 84, 122 (1828), it is a great but not uncommon error to suppose thatbecause a person can understand a question put to him and can give a rationalanswer to such question, he is of perfect sound mind and is capable of makinga Will for any purpose whatever, whereas the rule of law, and it is the rule ofcommon sense, is far otherwise". As Redfield, J., said in Converse v.Converse 21 Ves. 168(1849), " in order to execute a valid Will, one musthave sufficient active memory to recall his family and his property and to forma rational judgment in regard to the deserts of the one, and the disposition ofthe other with reference to such deserts" [Delafield v. Parish 25 N. Y. 9(1862)]. The position is somewhat different where a testator has giveninstructions for his Will while his mind is still in vigour, and then, with therequisite degree of knowledge, executes the instrument shortly before his death: Parker v. Felgate L. R. 8 P. D. 171 (1883), Woomesh Chandra v. Hash Mohini I.L. R. 21 Cal. 279 (1893) affirmed by the Judicial Committee on appeal[Rashmohini v. Umesh 2 C. W. N. 321 : s. c. I. L. R. 25 Cal. 824 (1898)]. AsLord Macnaghten said in Perera v. Perera [1901] App. Cas. 354., where atestator is of sound mind when he gives instructions for a Will, but at thetime of signature accepts the instrument drawn in pursuance thereof, eventhough not able to follow its provisions then, he must be deemed to be of soundmind when it is executed. The case before us does not fall within this rule, ofwhich the cases of Kusum Kumari v. Satishendra 13 C. W. N. 1128 (1909). andVenkata v. Baggiammal 23 Mad. L. J. 54. may be mentioned as recentillustrations.

9. On behalf of the Respondents, the view, however, has beenearnestly pressed upon us that a Court of Appeal should be extremely slow todisagree with the primary Court on a question of appreciation of oral evidence.We are not unmindful that, in the words of Lindley, M. R., in Coghlan v.Cumberland [1898] 1 Ch. 704., quoted with approval by Lord Collins inShunmugaroya v. Manikka L. R. 36 I. A. 185: s. c. I. L. R. 32 Mad. 400 (1909).,it is always difficult for Judges, who have not seen and heard the witnesses,to refuse to adopt the conclusion of fact of those who have [Shama Charan v.Khettramoni L. R. 27 I. A. 10 : s. c. 4 C. W. N. 501; I. L. R. 27 Cal. 521 (1899) and Marmavula v. Annapurni 10 Mad. L. T. 304; 2 Mad. W. N. 330.]. Theprinciple mentioned, no doubt, embodies the general rule, but is not ofuniversal application, and cases are by no means rare where an Indian AppellateCourt has taken a different view on the facts with reference to the validity ofa Will from that taken by the primary Court, and the conclusion of theAppellate Court has been ultimately affirmed by the Judicial Committee :Rashmohini v. Umeshchandra 2 C. W. N. 321 : s. c. I. L. R. 25 Cal. 824 (1898).,Gangamoyi v. Troilakhya Nath : 10 C. W. N. 522: s. c. I. L.R. 33 Cal. 537 (1906) and Bulli-Kunwar v. Bhagirathi 9 C. W. N. 649 (1905).Here, however, the case is one, not so much of estimate of credibility of thewitnesses for the Petitioners who have been believed by the Trial Court, as ofthe effect of their statements on the assumption that they have spoken thetruth. The decision of the District Judge is vitiated by his failure to testthe evidence from the standpoint of the fundamental principle that the testatormust be of sound and discerning mind and memory, so as to be capable of makinga disposition of his property with sense and judgment, in reference to thesituation and amount of such property and to the relative claims of differentpersons who are or might be the objects of his bounty. It does not necessarilyfollow that in order to entitle as to disagree with the conclusion of the TrialCourt, we must disbelieve the witnesses who have been accepted as truthful bythat Court. In this connection, the observations of Baron Parke in Baker v.Batt 2 Moo. P. C. 317 (1838). may be usefully remembered :

In a Court of probate where the onus probandi mostundoubtedly lies upon the party propounding the Will, if the conscience of theJudge, upon a careful and accurate consideration of all the evidence on bothsides, is not judicially satisfied that the paper in question does contain thelast Will and testament of the deceased, the Court is bound to pronounce itsopinion that the instrument is not entitled to probate; and it may frequentlyhappen that this may be the result of an enquiry in cases of doubtfulcompetency in particular, without the imputation of wilful perjury on eitherside; or it may be, the Judge may not be satisfied on which side the perjury iscommitted, or whether it certainly exists. To the same effect are theobservations of Lord Brougham in Panton v. Williams 2 Curt. 530; 2 Notes ofCases, Sup. 21 : "there is no duty cast upon the Court to strain afterprobate, and to grant it where grave doubts remain wholly unremoved, and greatdifficulties oppose themselves to our progress, which we are quite unable tosurmount. It may suffice to say that the proof eminently lies on him who setsup a Will and further that it is more fatal than to his adversary if he leavesdifficulties entirely without explanations. It is much less material that thosewho seek to impeach a testamentary instrument should be unable to explaincertain things in their case and should be forced to admit that their argumentis not in every point consistent with all the facts, than that they who seek toestablish the Will should give no rational, consistent or intelligiblesolution of those difficulties which encumber their suppositions and obstructthe path towards the conclusion they would have us arrive at ". In thecase before us, we are unable to say that the propounders have satisfied usthat the instrument put forward as the last Will of Haralal Banerjee was executedby him when he had a sound disposing mind.

10. The only other matter for consideration is, whether thecase should be retried and the propounders allowed an opportunity to fill upthe deficiencies in the proof offered by them; after an anxious examination ofall the circumstances we have arrived at the conclusion that the matter shouldnot be reopened. There would be a real danger of manufacture and manipulationof evidence if witnesses were now allowed to be brought forward to speak toevents which happened nearly twenty years ago. The result, is that this appealis allowed, the decree of the District Judge set aside and the application forletters of administration made on the 19th February 1912, with reference to thealleged Will of Haralal Banerjee, dismissed. We direct however that the partiesdo bear their own costs throughout these proceedings.

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Susil Kumar Banerjeevs. Apsari Debi and Ors.(26.08.1914 - CALHC)